[Congressional Record (Bound Edition), Volume 157 (2011), Part 1]
[Senate]
[Pages 671-684]
[From the U.S. Government Publishing Office, www.gpo.gov]




                 UNANIMOUS CONSENT REQUEST--S. RES. 21

  Mr. MERKLEY. Mr. President, I submit a resolution on behalf of myself 
and Senator Tom Udall to amend rule XIX and rule XXII of the Standing 
Rules of the Senate, and I ask unanimous consent that the Senate 
proceed to the immediate consideration of the resolution.
  The PRESIDING OFFICER. Is there objection?
  Mr. MERKLEY. Mr. President, for purposes of having the resolution go 
over, under the rule, I object.
  The PRESIDING OFFICER. Objection is heard. The measure will go over, 
under the rule.
  Mr. MERKLEY. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. MERKLEY. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. MERKLEY. Madam President, I ask unanimous consent to speak on the 
issue of Senate rules. I will be joined by a few colleagues in a few 
minutes.
  The ACTING PRESIDENT pro tempore. The Senator is recognized.
  Mr. MERKLEY. Thank you, Madam President.
  The reason I am rising to talk about rules is because we are at the 
start of a new 2-year period for Congress. This is the appropriate time 
to be considering how well the Senate is working and whether we should 
amend the rules by which the Senate functions.
  The last major debate over many of the rules was in 1975. The reason 
there was a debate that particular year is that in 1973 and 1974, the 
Congress preceding, there were 44 filibusters, each eating up about a 
week of the Senate's time. There was a tremendous amount of frustration 
over the dysfunction of the Senate. So at the start of the Congress 
that began in 1975, there was an enormous amount of debate, debate that 
went on for weeks, with all kinds of motions. The spreadsheet tracking 
them fills pages. In the end, what this body, the Senate, decided to do 
was to change the rule that requires 67 Senators to terminate debate 
and have a final vote on a bill and replace it with the decision to 
have 60 Senators required to end debate and have a final vote on a 
bill. This is for the so-called cloture motion.
  Now we are in a period immediately preceded by the 2009-2010 
Congress. In 2009 and in 2010, we didn't have 44 filibusters, we had 
135 filibusters. In other words, the Senate has been three times as 
dysfunctional as it was preceding the last major debate in this Chamber 
over rules. Since each filibuster delays the work of the Senate for 
approximately a week under the rules, if you have 135 objections in a 
2-year period, that would be 135 weeks of delay in a 104-week period. 
Obviously, many things are not going to get done with that type of 
obstruction. Indeed, during 2010 this Chamber was unable to pass a 
single appropriations bill of the 13 appropriations bills traditionally 
taken under consideration, debated on this floor, and sent forward. Why 
is that important? Because in the appropriations bills, we make 
decisions about what the most pressing problems in America are and how 
we are going to allocate resources to address those pressing problems. 
We didn't fail to do this in one or two areas; we failed to do it in 
all 13. Furthermore, this body did not pass a budget during the last 
year, 2010. This body did not proceed to advise and consent on all of 
the nominations that came before it. In fact, we left over 100 
nominations pending.
  This merits a little bit further discussion because under the 
Constitution, it is the Senate, this esteemed Chamber, that weighs in 
on the President's nominations to fill key executive branch positions. 
It is this Chamber that weighs in on the President's recommendations to 
fill judicial positions, to assign judges.
  If we never get to the debate on the floor of the Senate, then we 
have not fulfilled our constitutional responsibility to advise and 
consent. In fact, we have wounded the executive branch, and we have 
damaged the judicial branch. Certainly, under our theory of balance of 
powers, it was never envisioned that the advise-and-consent function of 
the Senate would be used to damage other branches of government. We 
have failed in our responsibility.
  Furthermore, we have left over 400 House bills lying on the floor, 
collecting dust, unprocessed, unconsidered. The saying in the House of 
Representatives is the Senate is where good House bills go to die.
  It is appropriate that as we start a new 2-year period, we ask 
ourselves how we should address this dysfunction. There was a time in 
which the Senate was called the greatest deliberative body in the 
world. Unfortunately, today there is very little deliberation in the 
Senate. No appropriations bills, nominations unprocessed, hundreds of 
House bills untouched, an incomplete budget. The main culprit in this 
is the filibuster. A filibuster is kind of street language, if you 
will, for an objection to the regular order of holding a majority vote 
and triggering about a week's delay in the Senate's process, and it 
also triggers a supermajority of 60.
  It has gotten to the point that in this constitutional function as a 
majority body, a body in which we need 51 votes, it is functionally 
becoming a supermajority body.
  The Framers of the Constitution were very clear and they laid out a 
supermajority required for certain purposes. A supermajority is 
required to approve treaties or a supermajority is required to impeach 
but not to pass legislation. That was not the vision.
  Today, I rise to say we can do better in the Senate and that we owe 
it under our constitutional responsibilities to do better.
  There are a series of proposals that have been filed. One of my 
colleagues has arrived, Senator Udall, who has been a key leader, 
enormously instrumental in this effort to reform the Senate. In a few 
minutes, I am going to ask unanimous consent for one of these rule 
changes to be considered on the floor. I will do that when my 
colleagues across the aisle have arrived. I will go further in 
discussing how we need to change the Senate.
  Before I go further, Senator Udall already asked for a colloquy. I 
thought

[[Page 672]]

I would stop at this moment and see if he wants to jump in and share 
some general thoughts before we get into the specifics of the various 
resolutions which we might ask unanimous consent to have considered.
  The ACTING PRESIDENT pro tempore. The Senator from New Mexico.
  Mr. UDALL of New Mexico. Madam President, first of all at the 
beginning, let me thank two of my colleagues who have worked incredibly 
hard with me on the issue of Senate rules reform--Senator Merkley from 
Oregon and Senator Tom Harkin from Iowa. Senator Harkin will be joining 
us at some point.
  I also wish to thank the Chair. One of the very early leaders on the 
constitutional option on Senate reform of the rules was Senator Jeanne 
Shaheen from New Hampshire. She is in the chair today. I know she cares 
about this a lot. I know she wants to see this move forward.
  What we are trying to do is follow what has been the history in the 
Senate. At various points in the Senate, there has been respect for 
each other, the ability to get legislation on the floor, to have 
debate. With the rules, it is pretty extraordinary when we look at the 
history.
  When we look at the history of the Senate rules, one of the things 
that is very clear in the movements in the fifties, sixties, and 
seventies to consider rules reform, both leaders would allow proposals 
onto the floor, allow these proposals onto the floor to be voted upon.
  We have the extraordinary situation today--extraordinary, and we will 
see when our colleagues show up--where our friends on the other side of 
the aisle are basically saying: We don't want your rules reform on the 
floor today. We are not going to allow that to happen.
  As everybody in the Senate knows, we have to have unanimous consent 
to do this. We are not going to get consent today, but we want to lay 
out for people what it is that could happen if we were able to get 
something on the floor.
  It is my belief, I say to Senator Merkley, that the proposals we 
make--the proposal Senator Merkley and I are on and the Presiding 
Officer, Senator Shaheen, and 26 other Senators are on, S. Res. 10, 
that we filed on January 10, is a reasonable proposal; it is a 
commonsense proposal. The five proposals that are contained in the 
resolution have had substantial bipartisan support in the past.
  I am going to be asking unanimous consent to put S. Res. 10 onto the 
floor so we can have a debate on it, so we can move forward. What is, 
as I said, extraordinary is we are not going to get that consent. Our 
research indicates--and I know Senator Merkley and his staff worked 
very hard. They had a chart that was three pages long. In the fifties, 
sixties, and seventies, these proposals were on the floor. They were 
debated on the floor. Sometimes there was a motion to table, sometimes 
there was an up-or-down vote. But we are having great difficulty 
getting this reasonable, commonsense proposal on the floor.
  Let me talk a little bit about S. Res. 10, which 26 other Senators 
cosponsored on the first day. First of all, it deals with a serious 
problem. There are five parts to this issue. The first one is debate on 
motions to proceed. It may sound a little crazy to people out there, 
but when we try to get something onto the floor, it does not happen 
automatically. Actually, what has to happen is if both sides do not 
agree, the majority leader files what is called a motion to proceed. We 
can end up on the motion to proceed, going along for 1 week, have to 
file cloture, which means to cut off debate on the motion to proceed, 
and then with all the ripening time it takes about 1 week to get 
through that. We can get to the end of the week, and if we do not get 
the 60 votes to cut off debate on the motion to proceed, we are back to 
square one and have wasted a week. That is what we believe is a 
dilatory tactic. It does not let us get to the point, the people's 
business.
  Mr. MERKLEY. If I may interrupt for a moment, I wish to clarify what 
the Senator from New Mexico just said, which is, a supermajority of the 
Senate, after 1 week of debate, is required just to get to the point 
where we might start debate on the bill, and the Senate wastes weeks 
and weeks debating whether to debate rather than doing the people's 
business. That is a problem.
  Mr. UDALL of New Mexico. Senator Merkley hit it on the head. That is 
a problem, and we have had that consistently in the 2 years that he and 
I have been here. My understanding is, it happened in many of the years 
before that time. In fact, Senator Byrd was very upset about the way 
the motion to proceed was being used. In 1979, he came down to the 
floor--he was the majority leader--and he did everything he could to 
change the motion to proceed and try to make sure it was used more 
rationally and more reasonably.
  What our proposal is, I say to Senator Merkley, and other Senators on 
this resolution know, we are talking 2 hours of debate on the motion to 
proceed. Rather than wasting a week, if Majority Leader Reid comes down 
and says we are going to proceed to legislation about jobs and he puts 
it on the floor, the side over there gets an hour and our side gets an 
hour and then we are on the legislation, ready to have amendments 
filed, ready for debate to take place.
  We have saved us what we believe would be 1 week of time. That is 
dealing with the first proposal on the motion to proceed.
  The second proposal is very simple, but it is going to move the 
Senate along in a dramatic way; that is, section 2, eliminating secret 
holds. I know we have several Senators who have worked for years and 
years on secret holds. When I talk about the bipartisanship on secret 
holds, Senator Grassley, Senator Wyden, from Senator Merkley's great 
State of Oregon, Senator Claire McCaskill of Missouri more recently, 
have all been working on the issue of secret holds.
  We very simply do this in one little section. We say:

       No Senator may object on behalf of another Senator without 
     disclosing the name of that Senator.

  That gets right to the heart of secret holds.
  Mr. MERKLEY. Madam President, the Senator from New Mexico is telling 
me it has become a common practice on the floor of the Senate for an 
individual Senator who wants to oppose something to not have the 
courage to stand here and tell the world their position but instead to 
secretly object to a particular issue being raised. I cannot imagine 
the American public can believe that Senators do not have the courage 
of their convictions to come here and say: I am going to hold up this 
legislation because I disagree with it, and I am going to fight it any 
way I can. So the public can weigh in if they agree with them or not. 
They will be accountable to the U.S. citizens.
  Mr. UDALL of New Mexico. One of the things that happens--and we have 
seen a lot of this--we know some Senator is objecting, for example, to 
a nomination, a high nomination in an executive department and does it 
secretly so we do not know on the Senate floor, the press who covers 
this does not have an idea, and the people do not know. Then, the same 
Senator goes to the department and negotiates policy, national policy 
about a particular issue that concerns the whole Nation, all our 
States, and tries to get an agreement, a backroom deal and an 
agreement. That is not the way we should be doing business, and that is 
why this very simple proposal: ``No Senator may object on behalf of 
another Senator without disclosing the name of the Senator.''
  You own the hold.
  Mr. MERKLEY. I wish to note, as Senator Udall observed, Senator 
Wyden, Senator Grassley, and Senator McCaskill have worked hard on a 
much more detailed version than we have in S. Res. 10, but the basic 
notion is the same. If a colleague is going to place a hold, they are 
going to do so in a public and accountable fashion and that would 
greatly improve the quality of ballot.
  I have been in the position of trying to get help for the Klamath 
Basin in Oregon because they have had little

[[Page 673]]

rainfall. I eventually did find out, but it took me quite a while, 
asking a lot of questions about who had the hold so I could ask them to 
release the hold so we would have a chance of moving that assistance 
for this drought-impacted portion of my State.
  With this change, those holding up assistance to Klamath or any other 
area would have to come to the floor and make clear where they stand.
  Mr. UDALL of New Mexico. Then it is transparent, then if you as a 
Senator on the Klamath Basin want to do something, you can go to that 
Senator--whoever it is--and say: I have an issue with my State. Can we 
work together to try to work it out?
  Right now the problem we have is that some Senator is putting on a 
secret hold and we do not know who it is and we do not have the ability 
to clear that away. This is a good, solid proposal.
  Mr. MERKLEY. It is not only secret to the public, it is often secret 
to fellow Senators, greatly complicating our effort to dialog with 
fellow Senators as to why we are pursuing something and get their 
partnership in it.
  Mr. UDALL of New Mexico. I am going to move on to the third section 
of S. Res. 10, which is the right to offer amendments. As Senator 
Merkley knows very well and our Presiding Officer, one of the big 
issues around here--and this is getting into a little bit of the weeds, 
but one of the big issues that can help us function better is if we 
just agree, whether we are in the majority or in the minority, that we 
want both sides to have the opportunity to debate and to offer 
amendments. And so we are trying to protect that right. Many of us are 
thinking in terms of these rulings, and we are saying we want them to 
be fair to both sides. So the provision on the right to offer 
amendments is in the legislation. It talks about them being majority 
and minority amendments. It doesn't talk about parties because a lot of 
the pundits are saying we are going to be in the minority in 2 years, 
and I think it is only fair in the Senate that we have that kind of 
relationship.
  Senator Merkley.
  Mr. MERKLEY. I want to note this is important to both the majority 
and the minority. For example, we recently had a bill on the floor of 
the Senate which was a major bill regarding the compromise struck by 
President Obama with our Republican colleagues to spend almost $1 
trillion. I had an amendment I wanted to present that would have taken 
some of the money in that bill that was being spent in a fashion which 
created very few jobs and to spend it in a fashion which would create a 
lot of jobs. I had another proposal to take money that wasn't being put 
to good use and to proceed to fill in and support the solvency of 
Social Security and Medicare.
  Now, people can argue about whether these were good ideas, but if I 
had been able to offer one or both of those amendments, I think it 
would have improved the debate and dialogue and perhaps have resulted 
in a better piece of legislation.
  Mr. UDALL of New Mexico. The fourth provision--and I think the 
Senator is very right on section 3, but section 4 is the issue of 
extended debate, and I would like to have the Senator talk about that 
issue because that is the issue on which you worked the most closely.
  The Senator from Oregon has raised the issue of what we have going on 
right now is what we call a silent debate. It is a silent filibuster. 
We have people who say they want to filibuster and object, but then 
they go home or they go on vacation or something like that. So my 
colleague has drafted a provision--he is the architect of this 
provision in S. Res. 10, if he could just go through that and talk 
about that section on extended debate, what it does and why it is 
important to what we are dealing with today.
  Mr. MERKLEY. Certainly. This provision about a talking filibuster 
says rather than having a situation where a Senator objects to a 
majority vote and then we delay the work of the Senate for a week, 
though nobody is here explaining their position to the American public, 
instead we would switch to a provision that says if 41 Senators want 
continued debate on a bill, we will get continued debate on a bill. We 
will have debate on a bill, not silence.
  Currently, we have the hidden or the silent filibuster. With this, we 
would create the public or the talking filibuster. To give a sense of 
the numbers on this, these blue bars represent filibusters during the 
last 2-year period. During the first 6 months 33, 34 in the second 6 
months, 36 in the third 6 months, and then 33. I think that is 136 
total filibusters in a 2-year period.
  This is why we didn't have any appropriations bills. This is why we 
didn't have a budget. This is why we didn't deal with hundreds of House 
bills. And this is why we didn't get nominations done and advice and 
consent on them.
  Is this the way the Senate has always operated? Absolutely not. In 
the last few decades there has been a huge change in how the Senate has 
functioned. So let's take a look at the average per year.
  In the 1900-1970 period, the average was one filibuster per year. In 
the 1970s, the average was 16 filibusters per year. In the 1980s, 21 
filibusters per year, average; in the 1990s, 36 filibusters per year, 
average; in the 2000s, 2000-2010, 48 filibusters per year; and from 
2009 to 2010, this last session, an average of 68. There were 136 
total.
  So you can see from this chart the growing dysfunction. There was 
always a social contract that existed in which an individual Senator 
didn't exercise his or her power to object to a simple majority vote 
unless they thought it was an issue of huge consequence. Maybe that 
would occur once or twice in a career, but not routinely week after 
week. But that social contract has been eliminated. The filibuster was 
honoring the right of every Senator to be heard; that we were not going 
to hold a vote until every Senator had his or her say so we could be 
fully informed and have a full dialogue. It is that reciprocal respect 
that is being routinely disregarded and abused on the floor of the 
Senate.
  Many of us have an image of the filibuster that comes from the movie, 
``Mr. Smith Goes to Washington.'' Here is Jimmy Stewart playing the 
character of Jefferson Smith, and he comes to defend a corrupt action 
and to stop it regarding a camp for children. He talks through the 
night, and there are many forces assaulting him, but Jimmy Stewart is 
going to stay on the Senate floor and he is going to tell the American 
people what he is fighting for and why. This is the talking filibuster, 
where you don't object and go away and leave the Senate suspended. You 
don't vote for additional debate and then not have that debate. You 
come to this floor and you hold the floor and you join with other 
partners to hold the floor in order to explain why you are holding up 
the Senate and to carry on the debate, to have that additional debate 
you have voted for.
  So the talking filibuster is almost that simple--it replaces the 
silent filibuster with the talking filibuster. The result is two 
critical things: First of all, transparency and accountability with the 
American public. The public can see what you are saying on the floor of 
the Senate and can say you are a hero or you are a bum. They can agree 
with you or they can disagree, but it is visible, not hidden.
  The second thing is each Senator has to expend time and energy to 
carry out a filibuster, so this will strip away all these frivolous 
filibusters that are done for no other reason than to prevent the 
Senate from being able to carry on with its responsibilities.
  Mr. UDALL of New Mexico. Let me also say one thing about the talking 
filibuster that hit me, and that is bipartisanship. As we know, both of 
us, I think, were on the Senate floor when Senator Arlen Specter gave 
his farewell address. I believe the Presiding Officer was also here. 
Senator Specter served in the minority for 2 years and then was in the 
majority for almost 2 years and both times he came forward with a 
proposal where he was calling for the same thing--a talking filibuster, 
whether he was on the minority side or the majority side.
  So I think, once again, that just demonstrates that each of these 
provisions has bipartisan support in it.

[[Page 674]]

  We don't think this debate is about partisanship. We don't think it 
is about a power grab. We don't think it is about those kinds of 
things. It is about, as the Senator has elucidated, making the Senate 
work better. When we say ``make the Senate work better,'' we are 
talking about it working better for the American people.
  I think if we did the oversight of government when it comes to 
appropriations bills, a budget, getting the budget out on time, getting 
appropriations bills done on time, that does a lot to make sure the 
public's money is well spent, and that is something I hear a lot about 
back home.
  I will ask unanimous consent to have printed in the Record a 
Republican Policy Committee paper titled ``The Constitutional Option: 
The Senate's Power To Make Procedural Rules by Majority Vote,'' dated 
April 25, 2005.
  We keep hearing that any use of the constitutional option is simply a 
power grab by Democrats. That is simply not true--and a 2005 Republican 
Policy Committee memo provides some excellent points to rebut the power 
grab argument.
  Let me read part of the 2005 Republican memo and I will ask that the 
entire memo be printed in the Record:

       This constitutional option is well grounded in the U.S. 
     Constitution and in Senate history.
       The Senate has always had, and repeatedly has exercised, 
     the constitutional power to change the Senate's procedures 
     through a majority vote. Majority Leader Robert C. Byrd used 
     the constitutional option in 1977, 1979, 1980, and 1987 to 
     establish precedents changing Senate procedures during the 
     middle of a Congress. And the Senate several times has 
     changed its Standing Rules after the constitutional option 
     had been threatened, beginning with the adoption of the first 
     cloture rule in 1917. Simply put, the constitutional option 
     itself is a longstanding feature of Senate practice.
       The Senate, therefore, has long accepted the legitimacy of 
     the constitutional option. Through precedent, the option has 
     been exercised and Senate procedures have been changed. At 
     other times it has been merely threatened, and Senators 
     negotiated textual rules changes through the regular order. 
     But regardless of the outcome, the constitutional option has 
     played an ongoing and important role.

  The memo goes on to address some ``Common Misunderstandings of the 
Constitutional Option.'' Let me read some of those.
  Again, this is a direct quote:

       Senate procedures are sacrosanct and cannot be changed by 
     the constitutional option. This misunderstanding does not 
     square with history. As discussed, the constitutional option 
     has been used multiple times to change the Senate's practices 
     through the creation of new precedents. Also, the Senate has 
     changed its Standing Rules several times under the threat of 
     the constitutional option.

  The next misunderstanding addressed in the memo is that ``Exercising 
the constitutional option will destroy the filibuster for 
legislation.''
  The Republican rebuttal is:

       The history of the use of the constitutional option 
     suggests that this concern is grossly overstated. Senators 
     will only exercise the constitutional option when they are 
     willing to live with the rule that is created, regardless of 
     which party controls the body.

  And a final misunderstanding in the memo, and one which the 
Republicans are happy to use now, is that ``the essential character of 
the Senate will be destroyed if the constitutional option is 
exercised.''
  The memo rebuts this by stating:

       When Majority Leader Byrd repeatedly exercised the 
     constitutional option to correct abuses of Senate rules and 
     precedents, those illustrative exercises of the option did 
     little to upset the basic character of the Senate. Indeed, 
     many observers argue that the Senate minority is stronger 
     today in a body that still allows for extensive debate, full 
     consideration, and careful deliberation of all matters with 
     which it is presented.

  I ask unanimous consent that the memo be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

         [From the Republican Policy Committee, Apr. 25, 2005]

      The Senate's Power To Make Procedural Rules by Majority Vote

                           Executive Summary

       The filibusters of judicial nominations that arose during 
     the 108th Congress have created an institutional crisis for 
     the Senate.
       Until 2003, Democrats and Republicans had worked together 
     to guarantee that nominations considered on the Senate floor 
     received up-or-down votes.
       The filibustering Senators are trying to create a new 
     Senate precedent--a 60-vote requirement for the confirmation 
     of judges--contrary to the simple-majority standard presumed 
     in the Constitution.
       If the Senate allows these filibusters to continue, it will 
     be acquiescing in Democrats' unilateral change to Senate 
     practices and procedures.
       The Senate has the power to remedy this situation through 
     the ``constitutional option''--the exercise of a Senate 
     majority's constitutional power to define Senate practices 
     and procedures.
       The Senate has always had, and repeatedly has exercised, 
     this constitutional option. The majority's authority is 
     grounded in the Constitution, Supreme Court case law, and the 
     Senate's past practices.
       For example, Majority Leader Robert C. Byrd used the 
     constitutional option in 1977, 1979, 1980, and 1987 to 
     establish precedents that changed Senate procedures during 
     the middle of a Congress.
       An exercise of the constitutional option under the current 
     circumstances would be an act of restoration--a return to the 
     historic and constitutional confirmation standard of simple-
     majority support for all judicial nominations.
       Employing the constitutional option here would not affect 
     the legislative filibuster because virtually every Senator 
     supports its preservation. In contrast, only a minority of 
     Senators believes in blocking judicial nominations by 
     filibuster.
       The Senate would, therefore, be well within its rights to 
     exercise the constitutional option in order to restore up-or-
     down votes for judicial nominations on the Senate floor.


                              Introduction

       In recent months, there has been growing public interest in 
     the Senate's ability to change its internal procedures by 
     majority vote. The impetus for this discussion is a Senate 
     minority's use of the filibuster to block votes on 10 
     judicial nominations during the 108th Congress. Until then, a 
     bipartisan majority of Senators had worked together to 
     guarantee that filibusters were not to be used to permanently 
     block up-or-down votes on judicial nominations. For example, 
     as recently as March 2000, Majority Leader Trent Lott and 
     Minority Leader Tom Daschle worked together to ensure that 
     judicial nominees Richard Paez and Marsha Berzon received up-
     or-down votes, even though Majority Leader Lott and most of 
     the Republican caucus ultimately voted against those 
     nominations. But that shared understanding of Senate norms 
     and practices--that judicial nominations shall not be blocked 
     by filibuster--broke down in the 108th Congress.
       This breakdown in Senate norms is profound. There is now a 
     risk that the Senate is creating a new, 60-vote confirmation 
     standard. The Constitution plainly requires no more than a 
     majority vote to confirm any executive nomination, but some 
     Senators have shown that they are determined to override this 
     constitutional standard. Thus, if the Senate not act during 
     the 109th Congress to restore the Constitution's simple-
     majority standard, it could be plausibly argued that a 
     precedent has been set by the Senate's acquiescence in a 60-
     vote threshold for nominations.
       One way that Senators can restore the Senate's traditional 
     understanding of its advice and consent responsibility is to 
     employ the ``constitutional option''--an exercise of a Senate 
     majority's power under the Constitution to define Senate 
     practices and procedures. The constitutional option can be 
     exercised in different ways, such as amending Senate Standing 
     Rules or by creating precedents, but regardless of the 
     variant, the purpose would be the same--to restore previous 
     Senate practices in the face of unforeseen abuses. Exercising 
     the constitutional option in response to judicial nomination 
     filibusters would restore the Senate to its longstanding 
     norms and practices governing judicial nominations, and 
     guarantee that a minority does not transform the fundamental 
     nature of the Senate's advice and consent responsibility. The 
     approach, therefore, would be both reactive and restorative.
       This constitutional option is well grounded in the U.S. 
     Constitution and in Senate history. The Senate has always 
     had, and repeatedly has exercised, the constitutional power 
     to change the Senate's procedures through a majority vote. 
     Majority Leader Robert C. Byrd used the constitutional option 
     in 1977, 1979, 1980, and 1987 to establish precedents 
     changing Senate procedures during the middle of a Congress. 
     And the Senate several times has changed its Standing Rules 
     after the constitutional option had been threatened, 
     beginning with the adoption of the first cloture rule in 
     1917. Simply put, the constitutional option itself is a 
     longstanding feature of Senate practice.
       This paper proceeds in four parts: (1) a discussion of the 
     constitutional basis of the Senate's right to set rules for 
     its proceedings; (2) an examination of past instances when 
     Senate majorities acted to define Senate practices--even 
     where the written rules and binding precedents of the Senate 
     dictated otherwise; (3) an evaluation of

[[Page 675]]

     how this history relates to the present impasse regarding 
     judicial nomination filibusters; and (4) a clarification of 
     common misunderstandings of, the constitutional option. The 
     purpose of this paper is not to resolve the political 
     question of whether the Senate should exercise the 
     constitutional option, but merely to demonstrate the 
     constitutional and historical legitimacy of such an approach.


      The Constitution: the Senate's Right to Set Procedural Rules

       ``Each House may determine the Rules of its Proceedings.'' 
     --U.S. Constitution, art. I, sec. 5., cl. 2.
       The Senate's constitutional power to make rules is 
     straightforward, but two issues do warrant brief 
     elaboration--the number of Senators that are constitutionally 
     necessary to establish procedures and whether there are any 
     time limitations as to when the rulemaking power can be 
     exercised.
       The Supreme Court addressed both of these questions in 
     United States v. Ballin, an 1892 case interpreting Congress's 
     rulemaking powers.\1\ First, the Court held that the powers 
     delegated to each body are held by a simple majority of the 
     quorum, unless the Constitution expressly creates a 
     supermajority requirement.\2\ The Constitution itself sets 
     the quorum for doing business--a majority of the Senate.\3\ 
     Second, the Supreme Court held that the ``power to make rules 
     is not one which once exercised is exhausted. It is a 
     continuous power, always subject to be exercised by the 
     house.''\4\ Thus, the Supreme Court has held that the power 
     of a majority of Senators to define the Senate's procedures 
     exists at all times--whether at the beginning, middle, or end 
     of a Congress.
       The Senate majority exercises this constitutional 
     rulemaking power in several ways:
       First, it has adopted Standing Rules to govern some Senate 
     practices and procedures. Those rules formally can be changed 
     by a majority vote. Any motion to formally amend the Standing 
     Rules is subject to debate, and Senate Rule XXII creates a 
     special two-thirds cloture threshold to end that debate.
       Second, the Senate operates according to Senate precedents, 
     i.e., rulings by the Chair or the Senate itself regarding 
     questions of Senate procedure. A precedent is created 
     whenever the Chair rules on a point of order, when the Senate 
     sustains or rejects an appeal of the Chair's ruling on a 
     point of order, or when the Senate itself rules on a question 
     that has been submitted to it by the Chair.\5\ As former 
     parliamentarian and Senate procedural expert Floyd M. Riddick 
     has said, ``The precedents of the Senate are just as 
     significant as the rules of the Senate.''\6\
       Third, the Senate binds itself through rule-making statutes 
     that constrain and channel the consideration of particular 
     matters and guarantee that the Senate can take action on 
     certain matters by majority vote. At least 26 such rule-
     making statutes govern Senate procedure and limit the right 
     to debate, dating back to the 1939 Reorganization Act and 
     including, most prominently, the 1974 Budget Act.\7\
       Finally, the Senate can modify the above procedures through 
     Standing Orders, which can be entered via formal legislation, 
     Senate resolutions, and unanimous consent agreements.
       It is important to emphasize, however, that these rules are 
     the mere background for day-to-day Senate procedure. As any 
     Senate observer knows, the institution functions primarily 
     through cooperation and tacit or express agreements about 
     appropriate behavior. Most business is conducted by unanimous 
     consent, and collective norms have emerged that assist in the 
     protection of minority rights without unduly hindering the 
     Senate's business.
       Consider, for example, the Senate's contrasting norms 
     regarding the exercise of individual Senators' procedural 
     rights. Under the rules and precedents of the Senate, each 
     Senator has the right to object to consent requests and, with 
     a sufficient second, to demand roll call votes on customarily 
     routine motions. If Senators routinely exercised those 
     rights, however, the Senate would come to a standstill. Such 
     wholesale obstruction is rare, but not because the Senate's 
     standing rules, precedents, and rulemaking statutes prohibit 
     a Senator from engaging in that kind of delay. Rather, 
     Senators rarely employ such dilatory tactics because of the 
     potential reaction of other Senators or the possibility of 
     retaliation. As a result, informed self enforcement of 
     reasonable behavior is the norm.
       At the same time, some ``obstructionist'' tactics have long 
     been accepted by the Senate as features of a body that 
     respects minority rights. Most prominent is the broadly 
     accepted right of a single Senator to speak for as long as he 
     or she wants on pending legislation, subject only to the 
     right of the majority to invoke cloture and shut off debate. 
     Indeed, an overwhelming and bipartisan consensus in support 
     of the current legislative filibuster system has existed for 
     30 years.\8\ Thus, the norms of the Senate tolerate some, but 
     not all, kinds or degrees of obstruction.
       Thus, while written rules, precedents, and orders are 
     important, common understandings of self-restraint, 
     discretion, and institutional propriety have primarily 
     governed acceptable Senatorial conduct. It is the departures 
     from these norms of conduct that have precipitated 
     institutional crises that require the Senate to respond.


  The History: the Senate's Repeated Use of the Constitutional Option

       The Senate is a relatively stable institution, but its 
     norms of conduct have sometimes been violated. In some 
     instances, a minority of Senators has rejected past practices 
     and bipartisan understandings and exploited heretofore ``off 
     limits'' opportunities to obstruct the Senate's business. At 
     other times, a minority of Senators has abused the rules and 
     precedents in a manner that violates Senators' reasonable 
     expectations of proper procedural parameters. These are 
     efforts to change Senate norms and practices, but they do not 
     necessarily have the support of a majority.
       Such situations create institutional conundrums: what 
     should be done when a mere minority of Senators changes 
     accepted institutional norms? One option is to acquiesce and 
     allow ``rule by the minority'' so that the minority's norm 
     becomes the Senate's new norm. But another option has been 
     for the majority of Senators to deny the legitimacy of the 
     minority Senators' effort to shift the norms of the entire 
     body. And to do that, it has been necessary for the majority 
     to act independently to restore the previous Senate norms of 
     conduct.
       This section examines those illustrative instances--
     examples of when the Senate refused to permit a minority of 
     Senators to change norms of conduct or to otherwise exploit 
     the rules in ways destructive to the Senate, and, instead, 
     exercised the constitutional option.
     Then-Majority Leader Byrd's Repeated Exercise of the 
         Constitutional Option
       When Senator Robert C. Byrd was Majority Leader, he faced 
     several circumstances in which a minority of Senators (from 
     both parties) began to exploit Senate rules and precedents in 
     generally unprecedented ways. The result was obstruction of 
     Senate business that was wholly unrelated to the 
     institution's great respect for the right to debate and 
     amend. Majority Leader Byrd's response was to implement 
     procedural changes through majoritarian votes in order to 
     restore Senate practices to the previously accepted norms of 
     the body.
     1977--Majority Leader Byrd Exercised the Constitutional 
         Option to Alter Operation of Rule XXII and Prevent Post-
         Cloture Filibusters
       In 1977, two Senators attempted to block a natural gas 
     deregulation bill after cloture had already been invoked.\9\ 
     A ``post-cloture filibuster'' should seem counterintuitive 
     for anyone with a casual acquaintance with Senate rules, but 
     these obstructing Senators had found a loophole. Although 
     further debate was foreclosed by Rule XXII once post-cloture 
     debate was exhausted, the Senators were able to delay a final 
     vote by offering a series of amendments and then forcing 
     quorum calls and roll call votes for each one. Even if the 
     amendments were ``dilatory'' or ``not germane'' (which Rule 
     XXII expressly prohibits), Senate procedure provided no 
     mechanism to get an automatic ruling from the Chair that the 
     amendments were defective. A Senator could raise a point of 
     order, but any favorable ruling could be appealed, and a roll 
     call vote could be demanded on the appeal. Moreover, in 1975, 
     before a point of order could even be made, an amendment 
     first must have been read by the clerk. While the reading of 
     amendments is commonly waived by unanimous consent, anyone 
     could object and require a reading that could further tie up 
     Senate business. Thus, the finality that cloture is supposed 
     to produce could be frustrated.
       These practices were proper under Senate rules and 
     precedents, but Majority Leader Byrd concluded in this 
     context that these tactics were an abuse of Senate Rule XXII. 
     His response was to make a point of order that ``when the 
     Senate is operating under cloture the Chair is required to 
     take the initiative under rule XXII to rule out of order all 
     amendments which are dilatory or which on their face are out 
     of order.''\10\ The Presiding Officer, Vice President Walter 
     Mondale, sustained the point of order, another Senator 
     appealed, and Majority Leader Byrd immediately moved to 
     table. The Senate then voted to sustain the motion to table 
     the appeal. In so doing, the Senate set a new precedent that 
     ran directly contrary to the Senate's longstanding procedures 
     which required Senators to raise points of order to enforce 
     Senate rules. Now, under this precedent, the Chair would be 
     empowered to take the initiative to rule on questions of 
     order in a post-cloture environment.
       The reason for Majority Leader Byrd's tactic immediately 
     became clear. He began to call up each of the dilatory 
     amendments that had been filed post-cloture, and the Chair 
     instantly ruled them out of order. There was no reading of 
     the amendments (which would have been dilatory in itself) and 
     there were no roll call votes. The Majority Leader then 
     exercised his right of preferential recognition to call up 
     numerous remaining amendments, and similarly disposed of 
     them. No appeals could be taken because any appeal

[[Page 676]]

     was mooted when Majority Leader Byrd secured his preferential 
     recognition to call up additional amendments.''\11\
       This was the constitutional option in action. Majority 
     Leader Byrd did not follow the regular order and attempt to 
     amend the Senate Rules in order to block these tactics. 
     Instead, he used a simple point of order that cut off the 
     ability of a minority of Senators to add a new layer of 
     obstruction to the legislative process. His method was 
     consistent with the Senate's constitutional authority to 
     establish procedure.
     1979--Majority Leader Byrd Exercised the Constitutional 
         Option to Change Operation of Rule XVI (Limiting 
         Amendments to Appropriations Bills)
       Majority Leader Byrd used the constitutional option again 
     in 1979 in order to block legislation on appropriations 
     bills.\12\ Standing Rule XVI barred Senate legislative 
     amendments to appropriations bills. By precedent, however, 
     such amendments were permissible when offered as germane 
     modifications of House legislative provisions. Thus, when the 
     House acted first and added legislative language to an 
     appropriations measure, Senators could respond by offering 
     legislative amendments to the House's legislative language. 
     While another Senator might make a point of order, the 
     Senator offering the authorizing language could respond with 
     a defense of germaneness. And, by the express language of 
     Rule XVI, that question of germaneness must be submitted to 
     the Senate and decided without debate. By enabling the full 
     Senate to vote on the germaneness defense without getting a 
     ruling from the Presiding Officer first, the legislative 
     amendment's sponsor avoided having to overturn the ruling of 
     the Chair and create any formal precedents in doing so. The 
     result was a breakdown in the appropriations process due to 
     legislative amendments, and it was happening pursuant to 
     Senate rules that plainly permitted these tactics.
       Majority Leader Byrd resolved to override the plain text of 
     Rule XVI and strip the Senate of its ability to decide 
     questions of germaneness in this context. Senator Byrd's 
     mechanism was similar to the motion he employed in 1977: he 
     made a point of order that ``this is a misuse of precedents 
     of the Senate, since there is no House language to which this 
     amendment could be germane, and that, therefore, the Chair is 
     required to rule on the point of order as to its being 
     legislation on an appropriation bill and cannot submit the 
     question of germaneness to the Senate.''\13\ The Chair 
     sustained the point of order, and the Senate rejected the 
     ensuing appeal, 44-40.
       The result of Majority Leader Byrd's exercise of the 
     constitutional option was a binding precedent that caused the 
     Senate to operate in a manner directly contrary to the plain 
     language of Rule XVI.\14\ Moreover, the method was contrary 
     to past Senate practices regarding germaneness. But the 
     process employed, as in 1977, was nonetheless constitutional 
     because nothing in the Senate's rules, precedents, or 
     practices can deny the Senate the constitutional power to set 
     its procedural rules.
     1980--Majority Leader Byrd Changed Procedures Governing 
         Executive Session and the Treatment of Judicial 
         Nominations
       The Senate's Executive Calendar has two sections--treaties 
     and nominations. Prior to March 1980, a motion to enter 
     Executive Session, if carried, would move the Senate 
     automatically to the first item on the Calendar, often a 
     treaty. Rule XXII provides (then and now) that such a motion 
     to enter Executive Session is not debatable. However, unlike 
     the non-debatable motion to enter Executive Session, any 
     motion to proceed to a particular item on the Executive 
     Calendar was then subject to debate. In practice, then, the 
     Senate could not proceed to consider any business other than 
     the first Executive Calendar item without a Senator offering 
     a debatable motion, which then would be subject to a possible 
     filibuster.\15\
       Majority Leader Byrd announced his objection to this 
     potential ``double filibuster'' (once on the motion to 
     proceed to a particular Executive Calendar item, and again on 
     the Executive Calendar item itself), and exercised another 
     version of the constitutional option. This time he moved to 
     proceed directly to a particular nomination on the Executive 
     Calendar and sought to do so without debate. Senator Jesse 
     Helms made the point of order that Majority Leader Byrd could 
     only move by a non-debatable motion into Executive Session, 
     not to a particular treaty or nomination.\16\ The Presiding 
     Officer upheld the point of order given that it was grounded 
     in Rule XXII and longstanding understandings of Senate 
     practices and procedures. But Majority Leader Byrd simply 
     appealed the ruling of the Chair and prevailed, 38-54. Thus, 
     even though there was no basis in the Senate Rules, and even 
     though Senate practices had long preserved the right to 
     debate any motion to proceed to a particular Executive 
     Calendar item, the Senate exercised its constitutional power 
     to ``make rules for its proceedings'' and created the 
     procedure that the Senate continues to use today.
       As an historical sidenote, Majority Leader Byrd used this 
     new precedent to great effect in December 1980 when he 
     bypassed several items (including several nominations) on the 
     Executive Calendar to take up a single judicial nomination--
     that of Stephen Breyer, then Chief Counsel to the Senate 
     Judiciary Committee, to be a judge on the U.S. Court of 
     Appeals for the First Circuit. Judge Breyer was later 
     nominated and confirmed to the U.S. Supreme Court in 1994. 
     Without Majority Leader Byrd's exercise of the constitutional 
     option earlier that year, it is almost certain that Justice 
     Breyer would not be on the Supreme Court today.
     1987--Majority Leader Byrd Forced Change to Rule XII's Voting 
         Procedures through Execution of the Constitutional Option
       A fourth exercise of the constitutional option came in 1987 
     when Senator Byrd was once again Majority Leader. The 
     controversy in question involved an effort by Majority Leader 
     Byrd to proceed to consider a particular bill, an effort that 
     had been frustrated because a minority of Senators objected 
     each time he moved to proceed. To thwart his opponents, 
     Majority Leader Byrd sought to use a special feature of the 
     Senate Rules--the Morning Hour (the first two hours of the 
     Legislative Day).
       Under Rule VIII, a motion to proceed to an item on the 
     Legislative Calendar that is made during the Morning Hour is 
     non-debatable. This feature of the rules gives the Majority 
     Leader significant power to set the Senate agenda due to his 
     right to preferential recognition (which is, itself, a 
     creature of mere custom and precedent). Such a motion cannot 
     be made, however, until the Senate Journal is approved and 
     Morning Business is thereafter concluded (or the first of the 
     two hours has passed). Meanwhile, the clock runs on the 
     Morning Hour while that preliminary business takes place. 
     When the Morning Hour expires, a motion to proceed once again 
     becomes debatable and subject to filibuster.\17\ It was this 
     feature of the Morning Hour that Senator Byrd believed would 
     enable him to proceed to the bill in question.
       Majority Leader Byrd's plan was complicated, however, when 
     objecting Senators forced a roll call vote on the approval of 
     the Journal, as was their right under the procedures and 
     practices of the Senate. Rule XII provides that during a roll 
     call vote, if a Senator declines to vote, he or she must 
     state a reason for being excused. The Presiding Officer then 
     must put a non-debatable question to the Senate as to whether 
     the Senator should be excused from voting. When Majority 
     Leader Byrd moved to approve the Journal, one Senator 
     declined to vote and sought to be excused. Following Rule 
     XII, the Presiding Officer put the question directly to the 
     Senate--should the Senator be excused?--but during the roll 
     call on whether the first Senator should be excused, another 
     Senator announced that he wished to be excused from voting on 
     whether the first Senator should be excused. The Chair was 
     likewise obliged to put the question to the Senate. At that 
     point, yet another Senator announced he wished to be excused 
     from that vote. There were four roll call votes then 
     underway--the original motion to approve the Journal and 
     three votes on whether Senators could be excused. If Senators 
     persisted in this tactic, the time it took for roll call 
     votes would cause the Morning Hour to expire, and the 
     Majority Leader would lose his ability to move to proceed to 
     his bill without debate. All this maneuvering was wholly 
     consistent with the Standing Rules of the Senate.
       Majority Leader Byrd countered with a point of order, 
     arguing that the requests to be excused were, in fact, little 
     more than efforts to delay the actual vote on the approval of 
     the Journal. His solution was to exercise the constitutional 
     option: to use majority-supported Senate precedents to change 
     Senate procedures, outside the operation of the Senate rules. 
     In three subsequent party-line votes, three new precedents 
     were established: first, that a point of order could be made 
     declaring repeated requests to be excused from voting on a 
     motion to approve the Journal (or a vote subsumed by it) to 
     be ``dilatory;'' second, that repeated requests to be excused 
     from voting on a motion to approve the Journal (or a vote 
     subsumed by it) ``when they are obviously done for the 
     purpose of delaying the announcement of the vote on the 
     motion to approve the Journal, are out of order;'' and third, 
     that a Senator has a ``limited time'' to explain his reason 
     for not voting, i.e., he cannot filibuster by speaking 
     indefinitely when recognized to state his reason for not 
     voting.\18\ Majority Leader Byrd had crafted these new 
     procedures completely independently of the Senate Rules, and 
     they were adopted by a partisan majority without following 
     the procedures for rule changes provided in Rule XXII. Yet 
     the tactics were wholly within the Senate's constitutional 
     power to devise its own procedures.
       This 1987 circumstance offers a very important precedent 
     for the present difficulties. Majority Leader Byrd 
     established that a majority could restrict the rights of 
     individual Senators outside the cloture process if the 
     majority concluded that the Senators were acting in a purely 
     ``dilatory'' fashion. Previous to that day, dilatory tactics 
     were only out of order after cloture had been invoked.

[[Page 677]]


     Additional Senate Endorsements of the Constitutional Option
       The Senate also has endorsed (or acted in response to) some 
     version of the constitutional option several other times over 
     the past 90 years--in 1917, 1959, 1975, and 1979.
       The original cloture rule, adopted in 1917, itself appears 
     to be the result of a threat to exercise the constitutional 
     option. Until 1917, the Senate had no cloture rule at all, 
     although one had been discussed since the days of Henry Clay 
     and Daniel Webster. The ability of Senators to filibuster any 
     effort to create a cloture rule put the body in a quandary: 
     debate on a possible cloture rule could not be foreclosed 
     without some form of cloture device.
       The logjam was broken when first term Senator Thomas Walsh 
     announced his intention to exercise a version of the 
     constitutional option so that the Senate could create a 
     cloture rule. His method was to propose a cloture rule and 
     forestall a filibuster by asserting that the Senate could 
     operate under general parliamentary law while considering the 
     proposed rule. Doing so would permit the Senate to avail 
     itself of a motion for the previous question to terminate 
     debate--a standard feature of general parliamentary law.\19\ 
     In this climate, Senate leaders quickly entered into 
     negotiations to craft a cloture rule.\20\ Negotiators 
     produced a rule that was adopted, 76-3, with the opposing 
     Senators choosing not to filibuster.\21\ But it was only 
     after Senator Walsh made clear that he intended to press the 
     constitutional option that those negotiations bore fruit. As 
     Senator Clinton Anderson would remark in 1953, ``Senator 
     Walsh won without firing a shot.''\22\
       The same pattern repeated in 1959, 1975, and 1979. In each 
     case, the Senate faced a concerted effort by an apparent 
     majority of Senators to exercise the constitutional option to 
     make changes to Senate rules. In 1959, some Senators 
     threatened to exercise the constitutional option in order to 
     change the cloture requirements of Rule XXII. Then-Majority 
     Leader Lyndon Johnson preempted its use by offering a 
     modification to Rule XXII that was adopted through the 
     regular order.\23\ In 1975, the Senate three times formally 
     endorsed the constitutional option by creating precedents 
     aimed at facilitating rule changes by majority vote, although 
     the ultimate rule change (also to Rule XXII) was implemented 
     through the regular order after off-the-Floor 
     negotiations.\24\ And in 1979, Majority Leader Byrd 
     threatened to use the constitutional option unless the Senate 
     consented to a time frame for consideration of changes to 
     post-cloture procedures. The Senate acquiesced, and the 
     Majority Leader did not need to use the constitutional option 
     as he had in the other cases discussed above.\25\
       The Senate, therefore, has long accepted the legitimacy of 
     the constitutional option. Through precedent, the option has 
     been exercised and Senate procedures have been changed. At 
     other times it has been merely threatened, and Senators 
     negotiated textual rules changes through the regular order. 
     But regardless of the outcome, the constitutional option has 
     played an ongoing and important role.
     The Judicial Filibuster and the Constitutional Option
       The filibusters of judicial nominations during the 108th 
     Congress were unprecedented in Senate history.\26\ While 
     cloture votes had been necessary for a few nominees in 
     previous years, leaders from both parties consistently worked 
     together to ensure that nominees who reached the Senate floor 
     received up-or-down votes. The result of this bipartisan 
     cooperation was that, until 2003, no judicial nominee with 
     clear majority support had ever been defeated due to a 
     refusal by a Senate minority to permit an up-or-down floor 
     vote, i.e., a filibuster.\27\
       The best illustration of this traditional norm is the March 
     2000 treatment of President Bill Clinton's nominations of 
     Richard Paez and Marsha Berzon to the U.S. Court of Appeals 
     for the Ninth Circuit. When those nominations reached the 
     Senate floor, Majority Leader Trent Lott, working with 
     Democrat Leader Tom Daschle, filed cloture before any 
     filibuster could materialize. Republican Judiciary Chairman 
     Orrin Hatch likewise fought to preserve Senate norms and 
     traditions, arguing that it would be ``a travesty if we 
     establish a routine of filibustering judges.''\28\ Moreover, 
     as a further testament to the bipartisan opposition to 
     filibusters for judicial nominations, more than 20 
     Republicans who opposed the nominations and who would vote 
     against them nonetheless supported cloture for Mr. Paez and 
     Ms. Berzon, and cloture was easily reached.\29\ Had every 
     Senator who voted against Mr. Paez's nomination likewise 
     voted against cloture, cloture would not have been invoked. 
     Thus, as recently as March 2000, more than 80 Senators were 
     on record opposing the filibuster of judicial 
     nominations.\30\ If the new judicial nomination filibusters 
     are accepted as a norm, then the Senate will be rejecting 
     this history and charting a new course.
       It is not only the Senate norm regarding not filibustering 
     judicial nominations that risks being transformed, but the 
     effective constitutional standard for the confirmation of 
     judicial nominations. There can be no serious dispute that 
     the Constitution requires only a Senate majority for 
     confirmation. Indeed, many judicial nominees have been 
     confirmed by fewer than 60 votes in the past--including three 
     Clinton nominees and two Carter nominees.\31\ Never has the 
     Senate claimed that a supermajority is necessary for 
     confirmation.
       Recently, however, some filibustering Senators have 
     suggested that a failed cloture vote is tantamount to an up-
     or-down vote on a judicial nomination. The new Senate 
     Minority Leader, Harry Reid, has stated that the 10 
     filibustered judges have been ``turned down.''\32\ Senator 
     Charles Schumer has repeatedly stated that a failed cloture 
     vote is evidence that the Senate has ``rejected'' a 
     nomination.\33\ Senator Russell Feingold described the 
     filibustered nominees from the 108th Congress as having 
     ``been duly considered by the Senate and rejected.''\34\ 
     Judiciary Committee Ranking Member Patrick Leahy has referred 
     to the filibustered nominees as having been ``effectively 
     rejected.''\35\ And in April 2005, Senator Joseph Lieberman 
     claimed that 60 votes should be the ``minimum'' for 
     confirmation.\36\ These characterizations illustrate the 
     extent to which the Senate has lost its moorings.
       Without restoration of the majority-vote standard, judicial 
     nominations will require an extra-constitutional 
     supermajority to be confirmed, without any constitutional 
     amendment--or even a Senate consensus--supporting that 
     change. Any exercise of the constitutional option would, 
     therefore, be aimed at restoring the Senate's procedures to 
     conform to its traditional norms and practices in dealing 
     with judicial nominations. It would return the Senate to the 
     Constitution's majority-vote confirmation standard. And it 
     would prevent the Senate from abusing procedural rules to 
     create supermajority requirements. Instead, it would be 
     restorative, and Democrats and Republicans alike would 
     operate in the system that served the nation until the 108th 
     Congress.


         Common Misunderstandings of the Constitutional Option

     Senate procedures are sacrosanct and cannot be changed by the 
         constitutional option.
       This misunderstanding does not square with history. As 
     discussed, the constitutional option has been used multiple 
     times to change the Senate's practices through the creation 
     of new precedents. Also, the Senate has changed its Standing 
     Rules several times under the threat of the constitutional 
     option.
     Exercising the constitutional option will destroy the 
         filibuster for legislation.
       The history of the use of the constitutional option 
     suggests that this concern is grossly overstated. Senators 
     will only exercise the constitutional option when they are 
     willing to live with the rule that is created, regardless of 
     which party controls the body. For the very few Senators (if 
     any) who today want to eliminate the legislative filibuster 
     by majority vote, the roadmap has existed since as early as 
     1917. Moreover, an exercise of the constitutional option to 
     restore the norms for judicial confirmations would be just 
     that--an act of restoration. To eliminate the legislative 
     filibuster would not be restorative of Senate norms and 
     traditions; it would destroy the Senate's longstanding 
     respect for the legislative filibuster as a vehicle to 
     protect Senators' rights to amend and debate. It is also 
     worth noting that the Senate is now entering its 30th year of 
     bipartisan consensus as to the cloture threshold (three-
     fifths of those duly chosen and sworn) for legislative 
     filibusters.\37\
     All procedural changes must be made at the beginning of a 
         Congress.
       Again, this claim, does not square with history. In fact, 
     there is nothing special about the beginning of a Congress 
     vis-a-vis the Senate's right to establish its own practices 
     and procedures, or even its formal Standing Rules. As 
     discussed above, Majority Leader Byrd used the constitutional 
     option to create a precedent that overrode Rule XVI's plain 
     text--and not at the beginning of a Congress. Moreover, as 
     the Supreme Court held in Ballin, each House of Congress's 
     constitutional power to make procedural rules is of equal 
     value at all times.\38\
     The essential character of the Senate will be destroyed if 
         the constitutional option is exercised.
       When Majority Leader Byrd repeatedly exercised the 
     constitutional option to correct abuses of Senate rules and 
     precedents, those illustrative exercises of the option did 
     little to upset the basic character of the Senate. Indeed, 
     many observers argue that the Senate minority is stronger 
     today in a body that still allows for extensive debate, full 
     consideration, and careful deliberation of all matters with 
     which it is presented.
     Exercising the constitutional option would turn the Senate 
         into a ``rubber stamp.''
       Again, history proves otherwise. The Senate has repeatedly 
     exercised its constitutional power to reject judicial 
     nominations through straightforward denials of ``consent'' by 
     up-or-down votes. For example, the Senate defeated the 
     Supreme Court nominations of Robert Bork (1987), G. Harold 
     Carswell (1970), and Clement Haynsworth (1969) on up-or-down 
     votes.\39\ Even in the 108th Congress, when the Senate voted 
     on the nomination of J. Leon Holmes to a federal district 
     court in Arkansas, five Republicans

[[Page 678]]

     voted against President Bush's nominee. Had several Democrats 
     not voted for Mr. Holmes, he would not have been 
     confirmed.\40\ In other words, the Senate still has the 
     ability to work its will in a nonpartisan fashion as long as 
     the minority permits the body to come to up-or-down votes. 
     Members from both parties will ensure that the Senate does 
     its constitutional duty by carefully evaluating all nominees.


                               Conclusion

       Can the Senate restore order when a minority of its members 
     chooses to upset tradition? Does the Constitution empower the 
     Senate to act so that it need not acquiesce whenever a 
     minority decides that the practices, procedures, and rules 
     should be changed? Can the Senate majority--not necessarily a 
     partisan majority, but simply a majority of Senators--act to 
     return the Senate to its previously agreed-upon norms and 
     practices? The answer to all these questions is a clear yes. 
     The Senate would be acting well within its traditions if it 
     were to restore the longstanding procedural norms so that the 
     majority standard for confirmation is preserved and nominees 
     who reach the Senate floor do not fall victim to filibusters.


                                endnotes

       \1\144 U.S. 1 (1892).
       \2\Ballin, 144 U.S. at 6. There is no serious disagreement 
     with the Supreme Court's conclusion in Ballin. Indeed, 
     Senator Edward Kennedy has said that only a majority is 
     necessary to change Senate procedures. Congressional Record, 
     Feb. 20, 1975, S3848. Senator Charles Schumer conceded during 
     a Judiciary subcommittee hearing on the constitutionality of 
     the filibuster that Senate rules ``could be changed by a 
     majority vote.'' S. Hrg. 108-227 (May 6, 2003), at 60.
       \3\U.S. Const., art. I, Sec. 5, cl. 1.
       \4\Ballin, 144 U.S. at 5.
       \5\Floyd M. Riddick, Senate Parliamentarian, Oral History 
     Interviews (November 21, 1978), Senate Historical Office, 
     Washington, D.C., at 429.
       \6\Riddick interview at 426.
       \7\Martin B. Gold, Senate Procedure and Practice (2004), at 
     5. For a complete list of the 26 statutes that limit Senate 
     debate, see John Cornyn, Our Broken Judicial Confirmation 
     Process and the Need for Filibuster Reform, 27 Harv. J. L. 
     Pub. Pol'y 181, 213-214 (2003).
       \8\Standing Rule XXII's standard for cloture--three-fifths 
     of Senators ``duly chosen and sworn''--has been in effect 
     since 1975.
       \9\See Martin B. Gold & Dimple Gupta, The Constitutional 
     Option to Change Senate Rules and Procedures: a Majoritarian 
     Means to Overcome the Filibuster, 28 Harv. J. L. Pub. Pol'y 
     206, 262-264 (2004).
       \10\Gold & Gupta, 28 Harv. J. L. Pub. Pol'y at 263.
       \11\Gold & Gupta, 28 Harv. J. L. Pub. Pol'y at 263-264.
       \12\Gold & Gupta, 28 Harv. J. L. Pub. Pol'y at 264-265.
       \13\Gold & Gupta, 28 Harv. J. L. Pub. Pol'y at 265 
     (emphasis added).
       \14\Gold & Gupta, 28 Harv. J. L. Pub. Pol'y at 265.
       \15\Gold & Gupta, 28 Harv. J. L. Pub. Pol'y at 265-267.
       \16\Gold & Gupta, 28 Harv. J. L. Pub. Pol'y at 266.
       \17\Gold, Senate Procedure and Practice, at 68-69.
       \18\Gold & Gupta, 28 Harv. J. L. Pub. Pol'y at 267-269.
       \19\Gold & Gupta, 28 Harv. J. L. Pub. Pol'y at 220-226.
       \20\Gold & Gupta, 28 Harv. J. L. Pub. Pol'y at 226.
       \21\Gold & Gupta, 28 Harv. J. L. Pub. Pol'y at 226.
       \22\Gold & Gupta, 28 Harv. J. L. Pub. Pol'y at 227.
       \23\Gold & Gupta, 28 Harv. J. L. Pub. Pol'y at 240-247.
       \24\Gold & Gupta, 28 Harv. J. L. Pub. Pol'y at 252-260.
       \25\Gold & Gupta, 28 Harv. J. L. Pub. Pol'y at 260; 
     Congressional Record, Jan. 15, 1979.
       \26\This historical observation has been conceded by 
     leading Senate Democrats. For example, the Democratic 
     Senatorial Campaign Committee solicited campaign 
     contributions in November 2003 with the claim that the 
     filibusters were an ``unprecedented'' effort to ``save our 
     courts.'' See Senator John Cornyn, Congressional Record, Nov. 
     12, 2003, S14601, S14605. No Senator has disputed that until 
     Miguel Estrada asked the President to withdraw his nomination 
     in September 2003, no circuit court nominee had ever been 
     withdrawn or defeated for confirmation due to the refusal of 
     a minority to permit an up-or-down vote on the Senate floor.
       \27\For a review of all past cloture votes on judicial 
     nominations prior to the 108th Congress, see Senate 
     Republican Policy Committee, ``Denying Mr. Estrada an Up-or-
     Down Vote Would Set a Dangerous Precedent'' (Feb. 10, 2003), 
     available at http://rpc.senate.gov/_files/
JUDICIARYsd021003.pdf. See also Cornyn, 27 Harv. J. L. Pub. 
     Pol'y at 218-227.
       \28\Congressional Record, Mar. 8, 2000, S1297.
       \29\For Berzon, compare Record Vote #36 (cloture invoked, 
     86-13) with #38 (confirmed, 64-34); for Paez, compare Record 
     Vote #37 (cloture invoked, 85-14) with #40 (confirmed, 59-
     39). All votes on Mar. 8-9, 2000.
       \30\For a more detailed list of Senators' historic 
     opposition to filibusters for judicial nominations, see 
     Senate Republican Policy Committee, ``Denying Mr. Estrada an 
     Up-or-Down Vote Would Set a Dangerous Precedent'' (Feb. 10, 
     2003), available at http://rpc.senate.gov/_files/
JUDICIARYsd021003.pdf. For an extended examination of 
     filibustering Senators' previous opposition to judicial 
     filibusters, see Cornyn, 27 Harv. J. L. Pub. Pol'y at 207-
     211.
       \31\Examples of judicial nominations made prior to the 
     108th Congress that were confirmed with fewer than 60 votes 
     include Abner Mikva (D.C. Cir., 1979); L.T. Senter (N.D. 
     Miss., 1979); J. Harvie Wilkinson III (4th Cir., 1984); Alex 
     Kozinski (9th Cir., 1985); Sidney Fitzwater (N.D. Tex., 
     1986); Daniel Manion (7th Cir., 1986); Clarence Thomas 
     (Supreme Court, 1991); Susan Mollway (D. Haw., 1998); William 
     Fletcher (9th Cir., 1998); Richard Paez (9th Cir., 2000); and 
     Dennis Shedd (4th Cir., 2002).
       \32\William C. Mann, Senate leaders draw line on filibuster 
     of judicial nominees, Boston Globe, Jan. 17, 2005.
       \33\Senator Charles Schumer, Congressional Record, July 22, 
     2004, S8585 (``I remind the American people that now 200 
     judges have been approved and 6 have been rejected''); see 
     also Jeffrey McMurray, Pryor Supporters Debate Timing of 
     Vote, Tuscaloosa News, Jan. 10, 2005 (``To nominate judges 
     previously rejected by the Senate is wrong''); Anne Kornblut, 
     Bush Set to Try Again on Blocked Judicial Nominees, Boston 
     Globe, Dec. 24, 2004 (quoting official statement by Sen. 
     Schumer).
       \34\Keith Perine, Fiercest Fight in Partisan War May Be 
     Over Supreme Court, CQ Weekly, Jan. 10, 2005, at 59.
       \35\Congressional Record, Feb. 27, 2004, S1887.
       \36\Senator Joseph Lieberman, Transcript of Press 
     Conference, Apr. 21, 2005, on file with Senate Republican 
     Policy Committee.
       \37\In 1995, Senators Tom Harkin and Joe Lieberman proposed 
     a major revision to the Senate filibuster rules for 
     legislation, but the proposal failed 76-19, attracting the 
     support of no Republicans and but a fraction of Democrats 
     (who were in the minority). The only current Senators who 
     sought to change the Senate's consensus position on 
     legislative filibusters were Senators Jeff Bingaman, Barbara 
     Boxer, Russell Feingold, Tom Harkin, Edward Kennedy, John 
     Kerry, Frank Lautenberg, Joe Lieberman, and Paul Sarbanes. 
     See Record Vote #1 (Jan. 5, 1995).
       \38\Ballin, 144 U.S. at 5.
       \39\See Record Vote #348 (Oct. 23, 1987) (defeated 42-58); 
     Record Vote #112 (Apr. 8, 1970) (defeated 45-51); Record Vote 
     #135 (Nov. 21, 1969) (defeated 45-55).
       \40\Record Vote #53 (July 6, 2004) (confirmed 51-46).

  Mr. UDALL of New Mexico. I think this shows this isn't about a power 
grab; this is about trying to work to make sure the Senate is going to 
work better for the American people.
  The fifth provision of S. Res. 10--and as Senator Merkley knows, we 
are down here today to try to get S. Res. 10, rules changes, onto the 
Senate floor, and so we are going to be asking unanimous consent for 
that. But the fifth provision is called postcloture debate on 
nominations.
  Now, what are we talking about? Well, when we have a nomination that 
comes to the floor--a judicial nomination, an executive nomination--in 
the rule nominations have 30 hours of postcloture debate. So when you 
decide to cut off debate, when you get to the point that you say we are 
going to cut off debate, that 30 hours is normally used for amendments 
and to work through the amendment process.
  Well, when you have a nomination, you are not amending a nomination. 
You are trying to either move forward with an up-or-down vote on the 
nomination--the person is either voted up or down. It makes no sense to 
have 30 hours. So the other commonsense proposal we have is to shorten 
that postcloture time to 2 hours, from 30 hours, because there is no 
reason to amend in that phase.
  I know Senator Merkley is also familiar with this provision.
  Mr. MERKLEY. I think what the Senator from New Mexico has set forward 
is that we would save 28 hours on each nomination. If the Senate goes 
around the clock, that is a bit more than a day. If we are doing 10-
hour days, that is almost 3 days. We save 3 days of Senate time that is 
put to no purpose right now since by the time you have a 60-vote 
cloture you already have 60 Members saying they are ready to vote and 
want to go forward.
  So letting people wrap up over a couple of hours, restating their key 
points for other Members, makes sense. That is why the 2 hours are 
there. But rather 2 hours than 3 days.

[[Page 679]]


  Mr. UDALL of New Mexico. That is correct. So what we are doing 
today--and I know Senator Merkley has introduced a freestanding 
proposal on the talking filibuster, and we have joined together; I have 
also signed on to that--we have S. Res. 10, filed on January 5, which 
has the five solid provisions for reforming the rules. I think if you 
look at these in history, they have had broad bipartisan support.
  I would at this point recognize our colleague in this rules debate, 
our partner and hard worker and more senior in experience on these 
rules matters, who has joined us--Senator Tom Harkin from Iowa. We are 
in a colloquy situation, so I will yield.
  Mr. HARKIN. If the Senator will yield for an observation.
  Mr. UDALL of New Mexico. You bet.
  The ACTING PRESIDENT pro tempore. The Senator from Iowa.
  Mr. HARKIN. Madam President, I wish to thank my colleagues, Senator 
Udall of New Mexico and Senator Merkley of Oregon, because they are 
great leaders on this issue. I think they have brought a breath of 
fresh air to the Senate in exposing what has become gridlock that has 
made the Senate almost dysfunctional.
  I say to my friend, Senator Udall, especially in focusing on what the 
Constitution says and doesn't say, I believe--and I am only speaking 
for myself--that we are not living up to the oath we took as we stood 
by the well when we were sworn into the Senate. We took an oath that we 
would uphold and defend the Constitution and that we would bear true 
faith and allegiance to the same.
  Well, quite frankly, the Constitution, I believe, is quite clear in 
the way it is written, in the verbiage that is used. If you look to 
what the Founders wanted in the Constitution, they were very clear that 
but for a few instances, which they clearly spelled out in the 
Constitution requiring a supermajority of votes--such as treaties, for 
example, and impeachments, or expelling a Member--everything else is a 
majority vote.
  But the Senate has adopted rules in the past that I believe are, 
quite frankly, bordering on unconstitutional by requiring that in order 
to change the rules, it requires a two-thirds vote--67 votes. Well, 
that might be OK for one Congress, if they wanted to adopt that kind of 
rule, but how can one Congress bind another? I think it is quite clear 
from Parliaments of old and other legislative bodies, court rulings in 
this country, that one legislative body cannot burden a subsequent 
legislative body. Yet in the Senate, because of a change in the rules 
that happened some years ago, they say it binds every Senate 
thereafter.
  I believe that is unconstitutional. My friend from New Mexico, 
Senator Udall, has pointed this out time and time again, that really we 
have not only a constitutional right but a constitutional obligation 
that, on the first convening day of the Senate of any Congress, we 
adopt rules, and we can adopt those rules by majority vote. If the 
majority wants to adopt a rule that says that for this Congress we have 
to abide by a certain number, that is OK, but it cannot bind another 
Congress.
  Senator Udall has been quite eloquent on this issue. He has been very 
forthright and has fought very hard for what is known as the 
constitutional option. That is just a fancy word for saying ``live up 
to the Constitution.'' We took an oath to bear true faith and 
allegiance to the same--the Constitution. Senator Udall is constantly 
reminding us of what that Constitution says and does not say. As the 
Senator has pointed out many times, the Constitution says each body 
shall adopt its rules. So the Senate can adopt its rules. It does not 
say in the Constitution that each body shall adopt its rules but it 
requires a two-thirds vote to change those rules. It doesn't say that. 
It says each body shall adopt the rules, and it does not specify that 
we have to have a supermajority to do so. I think it only specifies a 
supermajority, if I am not mistaken, in five cases. Obviously, the 
Framers of the Constitution were quite clear that each Congress could 
adopt its rules and it could adopt them by a majority vote. Now we have 
a situation in the Senate whereby we are throttled by rules that do not 
permit us to change those rules except by a two-thirds vote.
  As I said many times, what if the voters of this country decided to 
elect 90 Senators from the same party, say, the Republican Party. Could 
they come in and say: We are going to adopt new rules, and from 
henceforth it is going to take 90 votes to change those rules, knowing 
that may never happen again in the history of this country that we 
would ever have 90 Senators from one party. Could they do that? If you 
accept the logic of what we are working with right now, the answer is 
yes, we could do that and bind every Senate from then on in perpetuity 
that the only way they could change the rules would be with 90 votes. 
We say that wouldn't happen. Well, what about 67 votes or 75 votes or 
78 votes? What is so magic about 67? Where does that magic number come 
from? It was plucked out of thin air.
  That is why I address myself to the issue Senator Udall has worked so 
hard on; that is, focusing on the constitutional issue.
  Senator Merkley, from Oregon, has focused on rule XXII--it is called 
the filibuster rule--which provides basically that we do not even have 
to filibuster. In a filibuster, people think they come on the Senate 
floor, like ``Mr. Smith Goes to Washington,'' and they speak and they 
hold the floor and they can hold the floor until they drop or, if 
somebody else wants to speak, they can speak. That is what people 
imagine a filibuster to be, and that is what a filibuster used to be. 
What a filibuster has become is a means whereby the minority can stop 
us from debating anything. So what has happened to the Senate, 
supposedly the greatest deliberative body in the world, is we have now 
become the greatest nondeliberative body because we do not debate 
because now a minority can decide what we take up and what we do not 
take up.
  Think about it this way. Under rule XXII, as it is now being used, 41 
Senators can decide what this body does. They have the veto right--the 
veto right over anything we bring up, that the majority wants to bring 
up. Again, when I say ``majority,'' I am not saying Democrats or 
Republicans; I am saying any majority. That is why I first brought up 
my proposal in 1995, when we were in the minority, because I wanted to 
make it clear that this was not a means whereby we were trying to grab 
power or anything. I said, no, this is for the smooth functioning of 
this place. I predicted at that time, in 1995, and the record is 
clear--it is in the Record--I predicted that unless we do something, 
the number of filibusters would escalate, it would be an arms race, and 
that is exactly what has happened--135 last year.
  So the Senator from Oregon has said that if we are going to have a 
filibuster, at least people ought to come on the floor and talk. At 
least, if you are going to filibuster, if you are so opposed to a bill 
and you have a group who is opposed to it, at least stand out here and 
speak. They don't have to do that now. They put in quorum calls and 
walk off the floor, and a minority--41 Senators--decides what we take 
up. They can stop anything.
  Think about it this way. For a bill to become law in this country, it 
requires that it pass the House and the Senate in the same form, and 
the President has to sign it. Right now, the way we are constituted and 
the way we operate in the Senate, 41, a minority in the Senate--
regardless of what the House wants to do, regardless of what the 
President wants to do, and regardless of what the voters may want--can 
stop it. That turns the whole concept of democracy on its head. I 
thought the majority rules, with rights to protect the minority. So the 
minority can offer amendments. I don't even mind if the minority wants 
to slow things down. That should be their right, to be able to do that 
as a minority. They should have the right to offer amendments, to 
change a bill as they see fit. But I do not believe a minority ought to 
have the right to absolutely stop and veto a bill or an amendment from 
coming to the Senate floor. We have a situation where the power resides 
with the minority.

[[Page 680]]

  I heard the distinguished Senator from Kentucky, Mr. McConnell, said 
the other day that this is a power grab by the Democrats. No, no; the 
power grab is by the minority, whatever minority. The power grab is by 
the minority to insist that they have the right to veto anything here. 
That is the power grab. So now the power lies with the minority, but 
the responsibility lies with the majority. So the majority in the 
Senate has the responsibility to act, but we do not have the authority. 
The minority has the authority, the right to veto things, but they 
don't have the responsibility. That is why we have such a dysfunctional 
system. This is what the people of America are opposed to.
  I will have more to say about this tomorrow as I think we will get 
into a longer debate on this issue. I think the people have the right 
to understand that if a majority of the House and a majority of the 
Senate pass something and the President agrees, it ought to become law. 
That is not the way it is. We used to have a system on the Senate floor 
where, if you offered an amendment and you got 51 votes, you agreed to 
the amendment. You can't do that anymore. You cannot get an amendment 
offered on the Senate floor unless you have 60 votes. That is what 
happened over the last 4 or 5 years. I know I myself tried to get an 
amendment offered on the financial regulation bill. I thought I had 
over 51 votes on it. I don't know if I did or not, but I was not able 
to offer it because there was a 60-vote threshold. I might have had 52 
or 53 or 54 or 55, but I did not have 60. Now in the Senate we require 
a supermajority to do anything because 41 Senators--a minority--have 
the right to veto anything the majority wants to bring up.
  As I said, I will have more to say about this, but it seems to me 
this stands democracy on its head and the idea of majority rule on its 
head. I think the majority ought to have the right. Elections ought to 
have consequences. If people vote for a certain party to be in power, 
that party, regardless of what it is, ought to have the authority to 
act. There ought to be rights for the minority to amend, discuss, 
debate, slow things down--fine. But the minority should not have the 
absolute power of a veto, and that is what the minority has in the 
Senate today.
  That is the issue Senator Merkley has been going after. At least if 
you are going to have a filibuster, there ought to be some consequences 
to it, and the consequences are that you ought to have to be here and 
talk and not hide behind quorum calls where we sit here for days on end 
doing nothing because someone has objected to bringing up a bill but 
they do not have to be here to discuss it.
  I thank my two colleagues for their great leadership on this issue. 
As I said, they brought a breath of fresh air here. The average person 
out there watching probably thinks: Bring it up for a vote. Things are 
not quite that simple in the Senate, as we are about to find out. So we 
are going to do whatever we can to bring this to the forefront, but I 
daresay that the way the rules are set up right now--requiring a 
supermajority to change those rules--makes it nearly impossible for a 
majority of the Senate to act.
  Again, I thank my colleagues, Senators Merkley and Udall, for their 
leadership. I look forward to being in league with them to do whatever 
we can to make this place function a little bit better and a little bit 
more in accordance with the principles of democracy, of majority rule, 
and respecting the rights and wishes of the voters of this country.
  I thank my colleague from Oregon for his leadership--I see he is 
standing there--and I thank my colleague, Senator Udall, for yielding 
to me.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Casey). The Senator from Oregon.
  Mr. MERKLEY. I would certainly like to thank Senator Harkin for the 
many years he has pursued reforming the rules of the Senate, especially 
from the perspective of being in the minority and then maintaining that 
same effort in the majority. I believe it is important to recognize 
that the issues we are presenting and bringing to the floor are to make 
the Senate work better as a deliberative body for both the minority and 
majority.
  If we were to turn the clock back several decades, we would not be 
here right now carrying on this colloquy. Instead, there would have 
been a unanimous consent to put a rule proposal on the floor of the 
Senate, and we would be debating that proposal. That is the way the 
Senate worked for most of its first two centuries.
  In 1953, Senator Anderson put forward a resolution to adopt new rules 
at the start of Congress. There was a debate on it. Then, eventually, 
it was tabled. It was tabled by 51. That is what the rule said--51 
could table, they could set it aside. He did not win his debate, but he 
got it on the floor of the Senate, and it was debated.
  The same thing in 1957, and in 1959, he again did this.
  In 1961, he did this again, and in that case it was debated on the 
floor of the Senate. Everyone said: Let's get the rule out there, let's 
hold a debate. Eventually, they referred it to the Rules Committee. 
Finally, near the end of the cycle, it was moved out of the Rules 
Committee, back to the floor, and they held another debate on Senator 
Anderson's proposal. The result of that debate was that it was tabled, 
the resolution was tabled. It did not pass. To have the debate is not 
going to guarantee you are going to win the debate but it is to engage 
in the deliberation, the exchange of ideas that enables us to capture 
the challenges we see, the challenges in our country and in this case 
the challenges with making the Senate function and making things work 
better.
  This goes on. Here we have five times in the course of 12 years that 
a rule proposal was put on the floor and was debated. It was defeated, 
but it was put on the floor under the framework that 51 Members could 
adopt rules under the Constitution, the constitutional power you have 
been speaking to so eloquently for Congress to organize itself--for the 
House of Representatives to organize itself and for the Senate to 
organize itself.
  I wanted to go over a little bit of that history to say the very fact 
that we are not at this moment debating a rule proposal is a reflection 
of the dysfunction of the Senate. A debate on the rule to fix the 
Senate itself reflects the dysfunction of the Senate.
  I want to thank you for having engaged in so many years of effort to 
bring these issues forward. The challenge of fixing the Senate has been 
engaged in by so many names that I was familiar with growing up, folks 
such as Senator McGovern, Senator Mondale, Senator Church, Senator 
Pearson. They all brought their effort to make this body work better. 
We did have a major reform in 1975.
  But as a chart I put up earlier showed, the congestion and the 
paralysis from the abuse of the privilege of having yourself heard, 
making yourself heard before your colleagues, has now compromised the 
ability for us to fulfill our constitutional responsibilities and we 
need to fight hard to try to fix the broken Senate.
  Mr. HARKIN. Mr. President, would the Senator yield for a question on 
that point?
  Mr. MERKLEY. I would be delighted to do so.
  Mr. HARKIN. The Senator is a student of the Constitution. We have all 
looked at it. We know what it says. I mentioned earlier about the fact 
that when we come in here, we take an oath of office to uphold and 
defend the Constitution against all enemies, foreign and domestic, to 
bear true faith and allegiance to the same. That is our oath of office, 
to bear true faith and allegiance to the Constitution.
  Is it the Senator's view that perhaps the way the Senate is 
constructed right now may in some way--I just throw this out--take away 
my constitutional right to adequately represent my constituents? If it 
takes a supermajority or if we cannot even change the rules, as the 
Senator has pointed out, does not this kind of take away some of the 
constitutional rights and obligations, obligations of a Senator, I ask 
the Senator?
  Mr. MERKLEY. Well, certainly I will tell you that Senator Byrd stood 
on

[[Page 681]]

this floor and said the Senate cannot be bound by the dead hand of the 
past. You can imagine that any particularly bizarre rule that might 
have been passed by our predecessors that damaged our ability to 
fulfill our constitutional responsibilities would be inappropriate, and 
we would need to change it. The Constitution empowers us to change it 
with a simple majority.
  So when the point comes that the Senate is not functioning in the 
fashion it was constitutionally intended to function--that is, a simple 
majority to pass legislation--then we certainly have to wrestle with 
whether we are doing our responsibility if we do not fight to make the 
Senate work better. We have an obligation to this Chamber, and we have 
an obligation to our responsibilities under the Constitution.
  Mr. HARKIN. I thank the Senator for his response on that.
  The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. UDALL of New Mexico. Mr. President, I know the Presiding Officer 
has also been a part of this rules reform effort. We very much 
appreciate that.
  It was mentioned here about Senator Byrd. I think one of the most 
interesting stories about Senator Byrd, I say to Senator Harkin and 
Senator Merkley, in 1979 when he came to the floor, he was talking 
about--and we have used this quote many times--the dead hand of the 
past, not being ruled by the dead hand of the past.
  What was he talking about? He was talking about the idea that one 
Senate could establish a set of rules and bind future Senates. He gave 
a passionate speech. We are in the situation that he talked about right 
now. He said, now we are at the beginning of Congress. This Congress is 
not obliged to be bound by the dead hand of the past.
  Take rule XXXII, which is a different numbered rule today. But, for 
example, the second paragraph thereof says that: The rules of this 
Senate shall continue from Congress to Congress until changed in 
accordance with these rules.
  That rule was written in 1959, by the 86th Congress. The 96th 
Congress is not bound by the dead hand of the 86th Congress. The first 
Senate--now he talks a little bit about history here, which is very 
important. The first Senate, which met in 1789, approved 19 rules by a 
majority vote. First Senate.
  Those rules have been changed from time to time, and that portion of 
the Senate rule XXXII I quoted was instituted in 1959. The members of 
the Senate who met in 1789 and approved that first body of rules did 
not for one moment think or believe or pretend that all succeeding 
Senates would be bound by that Senate. The Senate of the 86th Congress 
could not pretend to believe that all future Senates would be bound by 
the rules it had written. It would be just as reasonable to say that 
one Congress can pass a law providing that all future laws have to be 
passed by a two-thirds vote.
  Any member of this body knows that the next--any member of the body 
knows that the next Congress would not heed that law and would proceed 
to change it and would vote to repeal it by a majority vote, no doubt 
about it.
  So he says: I am not going to argue the case any further today except 
to say that it is my belief, which has been supported by rulings of 
three Vice Presidents of both parties and by votes of the Senate, in 
essence upholding this power and the right of a majority of the Senate 
to change the rules of the Senate at the beginning of a new Congress.
  That is the essence of where we are right today--that we are able, if 
we have a majority, to move forward with adopting our rules that are 
going to function for this session of Congress. That is why we are in 
such a battle here to try to get those proposals onto the floor. We 
want to get S. Res. 10. We want to get the talking filibuster proposal. 
We want to get those put onto the floor so we can have debate, we can 
have votes. And our understanding is there is going to be objection 
from the other side.
  As Senator Harkin said earlier, we function here by unanimous 
consent, and they apparently are not going to give us that consent. I 
know that Senator Harkin--changing the subject a little bit here--but 
both Senators Harkin and Merkley mentioned earlier the whole issue of 
why we want the Senate to function better, that we have pressing 
national problems and challenges.
  I think one of the Senators who said it best made a comment back in 
1971. This is Senator Hart, Senator Phil Hart of Michigan. It still 
resonates decades later.

       The apparent inability of the Senate to take action on our 
     domestic ills, when the needs are so painfully clear, is a 
     basic cause of unrest and disaffection among the citizenry. 
     The imperative of change is obligatory if institutions such 
     as the Senate are to have the capacity to respond well to the 
     complex array of overlapping domestic and international 
     issues.

  Long ago Thomas Jefferson said: As new discoveries are made and new 
truths discovered and manner and opinions change with the change of 
circumstances, institutions must advance also and keep pace with the 
times. Institutions must advance also and keep pace with the times.
  That is why we are here. We have rules that were adopted long ago 
that are not working today. You and I have talked several times about, 
if you want your government to spend money wisely, you want it to be 
efficient, why do we not give them a budget until half way through the 
fiscal year? It makes absolutely no sense.
  That is the situation we are in right now. We hold hearings, we bring 
the agency in, we think we are going to have an appropriations bill on 
the floor--by the way, this year we did not have--but last year we did 
not have a single appropriations bill on the floor. So they think they 
are going to get one budget. Then when we pass the fiscal year, last 
October 1, we start the fiscal year, we start into it, we have done a 
couple of continuing resolutions. A continuing resolution just gives 
them month-by-month funding. The next continuing resolution does not 
expire until March. So who would tell any agency, nonprofit government 
agency, that we are going to give you a budget but we are not going to 
quite tell you what it is, and maybe go month to month, and then about 
halfway through the year we are going to give you the rest of the 
budget.
  That is not the way to take care of the people's money. It is not the 
way to be efficient. It is not the way to make sure the people's money 
is very well spent. I think it is important that we do that work, the 
work of appropriations bills.
  Of the Senators who are on the floor right now, Senator Harkin is an 
appropriator. When you bring an appropriations bill to the floor and 
have all 100 Senators take a look at the appropriations bill, take a 
look at what is working in that department and what is not, and how we 
move down the road with that particular set of policy initiatives and 
programs, that is something the agency pays tremendous attention to, 
those amendments that are put in, the arguments that are made. And we 
are neglecting all of that now.
  Last year we did not do a single appropriations bill. In my 
understanding, the House--and I know we were very frustrated when I was 
over in the House. We would say: Well, why are we even passing the 
appropriations bills? The Senate does not do them. We are going to end 
up, at the end of the year, doing one of these continuing resolutions 
or an omnibus bill.
  For the first time in I do not know how long, last year the House 
gave up doing appropriations bills. So here, one of our core functions 
as a legislative body, what we all call the power of the purse, 
tremendously important, that power of the purse has been emasculated, 
it has been warped beyond recognition to the point where I think we are 
dysfunctional, the agencies are dysfunctional, and we have got to get 
it all back.
  I know the chairman of the Judiciary Committee has outlined a number 
of times--and I find it appalling that we do not have the judicial 
people in place to do the job for the country. Right now the Federal 
courts are looking at fraud on Wall Street. They are looking at all 
sorts of major cases that have to do with financial reform and insider 
trading and all of those kinds of things.
  Guess what. If you do not have judges to hear those cases, then all 
of that

[[Page 682]]

justice is going to be delayed. There is an old saying in the law: 
Justice delayed is justice denied. Today we have 94 judicial vacancies. 
The Judicial Conference of the United States has weighed in with the 
Senate and the House and said: These are judicial emergencies. Of 94 
vacancies, 44 of them they consider emergencies. They need somebody in 
there immediately. Yet, still, because of this constant filibuster we 
are in--it is a filibuster without real debate--it wastes a lot of 
time, it prevents our ability to put those judicial nominations on the 
floor and to get an up-or-down vote.
  The same thing is true of the executive branch.
  I know Senator Merkley saw the article in the Washington Post which 
was at the end of the first year of the Obama Presidency. He only had 
55 percent of his team in place of the top people in the agencies to 
run the government. And it is not all our fault. I think they were slow 
in sending some things up, but it is a pretty appalling number when you 
think of the job of a President to put his people in place in the 
agencies so his policies can be carried out. What has happened is that 
has been delayed and slowed down.
  I harken back when I was a youngster here in Washington growing up. I 
was about 12 years old when my father became Secretary of the Interior. 
Here you have only half of the people in place in the Federal 
Government. I remember my dad, as Secretary of the Interior, telling me 
when I would travel home: Tom, I have my whole team in place, virtually 
whole team in place in 2 weeks.
  So he had his top people. He was ready to carry out policy, ready to 
move forward with the President's policies at the Department of 
Interior. I remember, we had holes, we had a variety of things going in 
the Department of Interior.
  We had a very talented woman from New Mexico who was going to become 
the Solicitor, who had moved her young family to Washington. They had a 
3-month hold on her nomination. Nobody could ever figure out why. But 
she was finally allowed to become the Solicitor of the Interior 
Department.
  With all of these kinds of things, from holds to the constant 
filibuster without any real debate, have slowed down the government in 
a significant way and prevented us from doing the important oversight 
job we need to do.
  I know the Senator from Oregon has other comments he would like to 
make.
  Mr. MERKLEY. Mr. President, it is quite a contrast that the Senator 
is drawing between an era in which in a 2-week period the bulk of the 
team was in place, ready to do the work they were elected by the people 
to do--the executive branch, headed by the President, had his 
Secretaries, and the Secretaries had their teams in place, and they 
were ready to go forward to make sure they were working hard on the 
agenda they had laid out during the election cycle.
  As my colleague said, elections have consequences. The vision of our 
Republic is one in which we elect a President, and the President says: 
Here is my agenda. Then he puts together a team to get it done. It is 
not in the spirit of our Constitution, it is certainly not in the 
spirit of our democratic souls, after the people have elected a 
President, to try to damage and inflict pain and obstruction upon that 
President. That is essentially saying one does not accept the judgment 
of U.S. citizens about electing the President.
  This process has to change. We have to find a way that folks can be 
brought to the floor. It is not that this Chamber will approve every 
single nomination. It is that it will hold a debate and have a vote. If 
there is no controversy surrounding someone, then that will probably be 
reduced to a unanimous consent request. Some will be waived through to 
not take up the time on the floor of the Chamber.
  There is more than 1,000 executive branch positions that have to be 
confirmed under statute. That, too, should be changed. There is far too 
many positions that are basically set up so that they have to come to 
this Chamber. That is certainly a subject of conversation. But for 
those that under the law need to come for advice and consent, then we 
need to exercise that responsibility in a manner that is consistent 
with advise and consent but not with attempting to damage the President 
and his team.
  I was looking at a speech by one of my colleagues from Tennessee, Mr. 
Alexander. He titles it, ``The Filibuster, Democracy's Finest Show, the 
Right to Talk Your Head Off.'' That quote at the top of his paper is 
from a speech before the Heritage Foundation and is taken directly from 
the film ``Mr. Smith Goes to Washington.'' In other words, the premise 
that my colleague put in his paper is that there needs to be the right 
of the people elected by the citizens to have their voices heard on the 
floor of the Senate. That is what the talking filibuster is about. It 
is about the people being able to see their Senators, when they are 
saying there needs to be additional debate, to actually debate.
  There is a tremendous amount of bipartisan support for this notion 
that Senators should not hide from the American people, that they 
should not be engaging in secret holds, but instead, if they are going 
to place a hold on a piece of legislation, to do it publicly and have 
accountability. There is tremendous support for the notion that when we 
proceed to vote that we want additional debate, we are actually going 
to debate so we utilize the time of the Senate to weigh the pros and 
cons, to hear all colleagues. Not that folks say: We want additional 
debate and then go off to dinner. Not that Senators say: We want 
additional debate and then go off on vacation.
  If they ask for additional debate, then we should have additional 
debate, laying out the pros and cons, arguing the merits, considering 
amendments--in short, the talking filibuster.
  I have a unanimous consent request that I gave notice of half an hour 
ago. We are standing by waiting for one of our colleagues from the 
other side to come, extending the courtesy for them to come and object 
to this request. I am saying this out loud and looking across the aisle 
and saying we have been waiting half an hour. I think it is time for 
one of our colleagues who wishes to object to get here on the floor 
and, just as we have been talking about, make their case visibly in 
front of the citizens of the United States as to why they wish to 
object to having a full debate on the talking filibuster. I know my 
colleague is waiting to offer a unanimous consent request to have 
resolution No. 10 considered before this Chamber. I think we have 
pretty well laid out the reasons we think this debate is important. But 
we can't get to that debate without putting forward a unanimous consent 
request and having it concurred in or blocked by objection.
  I will see if my colleague from New Mexico wishes to make any more 
comments. If not, I will offer my unanimous consent request and await 
our colleagues to come and either endorse or object.
  Mr. UDALL of New Mexico. Mr. President, I am also waiting. Senator 
Merkley is waiting to put in his unanimous consent request on the 
talking filibuster proposal which goes to the heart of the problem we 
have today. One of the things I have learned the last 2 years in the 
Senate is that when 41 Senators vote for more debate, that is basically 
what is happening. When Senators vote for more debate, 41 of them, then 
we don't get more debate. A lot of times we are in quorum calls. A lot 
of times if we have a live quorum, we pull 51 Senators over to the 
floor to try to get through that, there are a series of dilatory 
motions, and it is very difficult in the modern Senate to keep 51 
Senators here surrounding the floor. In the old days, they used to pull 
out cots and stay through the night so that Senators would be able to 
sleep someplace to keep that live quorum going. But in the modern 
Senate, with everything going on, it is a tremendously unfair advantage 
for one side to have one Senator and the other side have to have 51 in 
order to try to conduct any business. That is the situation we are in 
today. That is what the talking filibuster goes to. It goes to dealing 
with that situation.
  How does it deal with it? If 41 Senators request more debate, if they 
say

[[Page 683]]

to the other 59 Senators they want more debate, we very simply say, 
just as Senator Alexander said, quoting Jimmy Stewart in ``The Right to 
Talk Your Head Off'' from ``Mr. Smith Goes To Washington,'' then come 
down and debate. We are going to have a debate period where nothing 
else is brought up but debate. The job of the Chair, as the Presiding 
Officer knows, will be in that period to ask the question: Are there 
any other Senators on the floor who wish to debate?
  At that particular point, the American people could look down and be 
able to make an observation: Is this debate educating the public? Is it 
moving things forward, or is it just a filibuster to waste time?
  One of the old-time Senators from California made a comment about the 
filibuster wasting time. This is from Senate Republican whip Tom Kuchel 
of California. He asked the question on the floor: What is a 
filibuster? My definition would be that it is irrelevant speech making 
in the Senate designed solely and simply to consume time and thus to 
prevent a vote from being taken on pending legislation.
  He is pretty condemning of that kind of filibuster. But that is a 
judgment. We don't want to take people's right to debate away. We just 
want to make sure there is an honest, fair debate on the floor. That is 
what I compliment Senator Merkley on. He has drafted a proposal, worked 
long and hard on it. What it ends up doing is, at the end of the 
debate, when 41 Senators call for debate, we go into a period of 
extended debate. They talk and they talk. At some point, when the Chair 
asks: Are any other Senators on the floor who wish to debate, and there 
is silence, they are then rolled over into what is called postcloture 
30 hours.
  Mr. MERKLEY. So if I might explain, if there is something critical to 
my State, the talking filibuster enables me to find a couple of other 
Senators who share my views. Perhaps they have similar issues in their 
States.
  For example, the citizens of Oregon don't want oil companies drilling 
off our coast. We have a tremendous business in salmon, in ground fish, 
rock fish. We have a river economy that depends on the migration of 
salmon upstream. We have a crab industry. We have a tourist industry, 
the most spectacular coastline anywhere in the world, the coast of 
Oregon. The last thing we want is an accident that puts oil all over 
our beaches and destroys multiple aspects of our economy.
  So if there was a bill on the floor that said we are going to drill 
for oil off the coast of Oregon, and if I believed that was a huge 
mistake, then I could organize with other Senators and be here day and 
night to block that misguided legislation. In that sense we are not 
changing the number. It still takes 60 Members to close debate.
  We protect the voice of the minority. We say two Members could 
continue a debate day and night. For that matter, one could, but 
eventually one is going to collapse on the floor like Jimmy Stewart 
did. This is important to note because the talking filibuster is about 
taking away frivolous obstructions that paralyze the Senate and prevent 
it from doing its responsibilities on advise and consent and 
considering regular bills from the House and certainly to be able to 
get the appropriations bills done, to get the authorization bills done, 
and so on and so forth.
  There may be those who say we oppose the talking filibuster because 
it takes away the power of the minority to block legislation. Actually, 
the talking filibuster doesn't do anything of the kind. It just says 
that when you block legislation, you have to do it in front of the 
American people. You have to stand on the floor and make your case.
  Mr. UDALL of New Mexico. Mr. President, that is the essence of it. 
What we have now is Senators leaving. We actually had the case where a 
Senator wanted the cloture vote to take place but then left and went 
home. That is a pretty disgraceful situation. I have heard that our 
good friend, Senator Alexander, is going to join us in a little bit. I 
know the Senator from Oregon was quoting from a speech he recently gave 
at the Heritage Foundation on January 4, 2011.
  One of the things Senator Alexander said in there that I think we, 
all three of us, have echoed--Senator Harkin, Senator Merkley, and 
myself--is:

       Now there is no doubt the Senate has been reduced to a 
     shadow of itself as the world's greatest deliberative body, a 
     place which, as Sen. Arlen Specter said in his farewell 
     address, has been distinctive because of ``the ability of any 
     Senator to offer virtually any amendment at any time.

  I say to Senator Harkin, I know he has spoken passionately about the 
idea of offering amendments, how our democracy has deteriorated in the 
Senate because it takes now 60 votes--every amendment. I say to the 
Senator, it did not always used to be like that, did it? I would ask 
the Senator, did it? The Senator has been here a while. What was the 
Senate like 10, 15 years ago? Could you get an amendment through with a 
majority vote?
  Mr. HARKIN. Well, if my friend will yield for a response.
  Mr. UDALL of New Mexico. Of course.
  Mr. HARKIN. Yes, literally up until 4 or 5 years ago you could offer 
an amendment on the floor, and if you got 51 votes, you won. That 
happened for--well, I have been here, what, 25, 26 years I guess now, 
and that is the way it has always been. Sometimes there were tough 
amendments. Sometimes there were tough amendments by Democrats; 
sometimes there were tough amendments by Republicans. It did not make 
any difference who was in the majority or the minority.
  I do not think people elected us just to have an easy time of it here 
and not to ever cast tough votes. Sometimes these are tough votes. But 
I think the Senator from New Mexico is right. We always operated under 
the fact that a Senator could offer an amendment. Usually you would 
enter a time agreement. You would say: How much time do you want? Well, 
you would have an hour or an hour and a half or 2 hours, something like 
that. You would have a reasonable time agreement, and you would have 
debate and then a vote. Sometimes people would move to table it, and 
that was fine, but at least 51 votes decided that.
  Now, as the Senator pointed out, you have to have 60 votes for any 
amendment, a supermajority. For any single amendment you want to bring 
up on the Senate floor, you now have to have 60 votes. I say to my 
friend, it was not always like that.
  Mr. UDALL of New Mexico. I say to Senator Harkin, one of the things 
that happened to us right at the end of the Congress was when we had a 
vote on a piece of legislation called the DREAM Act. I believe the 
majority had 55 votes for the DREAM Act.
  Mr. HARKIN. That is right.
  Mr. UDALL of New Mexico. Here is a piece of legislation where we were 
talking about inmigrant children--through no fault of their own; they 
were probably brought in as tiny babies--who have grown up in the 
United States and have reached the age of adulthood and they have a 
ceiling on them. They cannot go to college. They do not have Social 
Security numbers. So we were basically trying to give them a dream they 
could go out and be Americans. They could join the military, and after 
they did their military service get in line for citizenship. They could 
go to college, and if they did well, get in line for citizenship.
  In any other country, if you had the two legislative bodies--the 
House passed it by a majority; we passed it by a big majority, 55 
votes--you would have a law. The President would be signing it, and it 
would be law today.
  That is what has happened to this filibuster rule. A lot of the steps 
we are taking do not necessarily get right to the heart of that, but I 
think the people understand that part of it. When I have gone home, 
people say: What happened? What is going on? Fifty-five Senators voted 
for the DREAM Act and it did not become law.
  Senator Harkin.
  Mr. HARKIN. If the Senator will yield, the Senator is absolutely 
right. I will give another example. As the Senator knows, the Supreme 
Court decided a case last year that allows certain entities to 
contribute money to political campaigns, and they do not even have

[[Page 684]]

to disclose who they are or how much they give. It is a Supreme Court 
decision.
  Well, the House passed a bill, and public opinion polls show that 80 
percent of the American people were in favor of what we called the 
DISCLOSE Act. We did not say they could not give the money. We just 
said they ought to file: Who are you, and how much money are you 
giving, and where are you getting that money from?
  It passed the House. It came to the Senate. I believe we had 57 votes 
for that, if I am not mistaken. I could be corrected, but I think it 
was over 55 votes for that. But it did not pass.
  The average American out there would say: Wait a minute. I thought if 
you got 51 votes, you won. No, no, no. Again, we had to have 60 votes 
in order to pass the DISCLOSE Act. The President would have signed it 
into law. The House passed it. Eighty percent of the American people 
were for it. But because there was this 60-vote threshold, we did not 
get it passed.
  I see the Senator from Oregon.
  Mr. MERKLEY. Well, I say to Senator Harkin, I think that is a 
tremendous example. I believe we actually had 59 votes twice----
  Mr. HARKIN. I stand corrected.
  Mr. MERKLEY. I believe, one vote short needed to close debate on the 
motion to proceed to get to the DISCLOSE Act. So we could not even get 
onto the bill.
  So here is a Supreme Court decision that allows unlimited--
unlimited--secret foreign donations. I will tell you, as a red-blooded 
American, the idea of foreign companies secretly influencing American 
elections is outrageous, and we should have had a debate on that bill. 
But, instead, we had 41 Senators who said they wanted further debate, 
and then they were not willing to stand up on the floor to make their 
case before the American people. And why did they want to hide from the 
American people? Because the American people do not support secret 
foreign donations influencing American elections. That is why.
  Under the talking filibuster, folks could not have filed an objection 
and left this Chamber and hid. They would have had to make their case, 
and the American people could have weighed in and said: You are a hero 
or you are a bum. In this case certainly most Americans, I believe, 
would have weighed in and said: Get to that bill. Get to a debate on it 
and get it done because it is the American tradition for Americans to 
make their decisions about who they elect, not foreign corporations to 
secretly spend money on American campaigns.
  Mr. HARKIN. I thank the Senator. The Senator pointed out correctly--I 
was mistaken; I thought it was 57--it was 59 votes. You would think 
normally that bill would pass and it would go to the President for his 
signature. It was supported overwhelmingly by the American people, yet 
thwarted because we have the right--as I said earlier, the minority in 
the Senate has a right of veto. They can veto whatever they want to 
bring up. What sense does that make in a democracy?
  I thank the Senator and yield the floor.
  Mr. UDALL of New Mexico. I thank the Senator.
  We see our good friend, Senator Alexander from Tennessee, has 
arrived, and we very much appreciate that.
  I say to Senator Alexander, one of the things we have been 
discussing--and Senator Merkley had a chart and had the history of what 
had happened as far as rules debates. There have been a lot of rules 
debates--in the 1950s, 1960s, 1970s, and always--always--the two 
leaders would allow a rules proposal to be on the Senate floor and be 
debated and be disposed of.
  We now have a situation today where we cannot get our rules proposals 
onto the floor. Senator Merkley is here with a talking filibuster 
proposal. I say to the Senator, I believe he has been talking with you. 
I say to Senator Alexander, you have been very open with us in saying: 
Let's have discussions. And your theme has really been, like you say in 
your speech at the Heritage Foundation:

       [T]he Senate needs to change its behavior, not to change 
     its rules.

  That has been the Senator's function. But the Senator is also working 
on rules changes with Senator Schumer, and we very much appreciate 
that.
  But I know Senator Harkin has a proposal. Senator Merkley has a 
proposal. I have S. Res. 10. I say to the Senator, he was here on the 
first day of the Senate session on January 5 when we put in, with my 
two friends, S. Res. 10. We are just trying to get it to the floor, and 
that is what I am going to ask right now, with my unanimous consent 
request. We very much appreciate the Senator being here.

                          ____________________